IX.
Violation of the Right to Defend Against Deportation

Though
deportation is not technically a criminal proceeding, it visits a great
hardship on the individual and deprives him of the right to stay and live and
work in this land of freedom. That deportation is a penalty—at times a
most serious one—cannot be doubted. Meticulous care must be exercised
lest the procedure by which he is deprived of that liberty not meet the
essential standard of fairness.[146]

Despite the US Supreme Court’s 1945 admonition about
the need for meticulous care in deportation proceedings, transfers of detainees
often interfere with their ability to present a defense, which in turn
undermines the fairness of the entire procedure. The detrimental effects of
transfer on a detainee’s ability to present a defense were emphasized
time and again during our interviews with immigration attorneys for this
report.[147]
Detainees themselves were also deeply frustrated by the negative effect
transfer was having on their deportation cases.

There are several ways in which transfer can impede a
detainee’s defense. Immigration detainees often rely on family members,
friends, and their relationships in churches and communities of origin to
defend against deportation. The existence and strength of such relationships
are one of the few bases in US law for a non-citizen to argue that he or she
should not be deported. For example, in many cases in which the detainee can
apply to cancel his or her deportation, the detainee’s spouse, parent,
and/or child is a critical witness to establish that deportation would result
in what the law defines as “exceptional and extremely unusual
hardship.”[148]

Human Rights Watch interviewed a 61-year-old man from Mexico
who came to the United States in November 1979. His immigration status and
conviction would allow him to apply for “cancellation of removal”
based on hardship to his legal permanent resident wife, four US citizen
children, one of whom was gravely ill with a spinal injury, and 16 US citizen
grandchildren. Nevertheless, he was struggling to present evidence of these
relationships to the judge in Texas, since his family members were all in
southern California and unable to travel to Texas.[149]

In other cases, a detainee may be able to defend against
deportation based on a close family member’s status as a US citizen, or
based on the resolution of a pending application to adjust his or her own
status to one that would not result in deportation. Other detainees can defend
against deportation by proving that they themselves are US citizens. In any of
these scenarios, the detainee’s spouse, parent, and/or child is a
critical witness in establishing the required family relationship. Proximity to
one’s family may be the only way to gather the necessary evidence to
defend against deportation.

For example, the US citizen stepfather of a young man facing
deportation wrote to his congressman, begging him to stop his detained
stepson’s transfer from Boston to Louisiana. The stepfather claimed his
stepson was a US citizen due to the US citizenship of his biological father.
The stepfather was honorably discharged from the US army in 1992, after seeing
combat in the 1991 Gulf War and serving in Saudi Arabia and Germany. In
Germany, he met and married his wife, and became stepfather to her then
two-year-old son. He wrote to explain:

[T]here is even a chance that [name redacted] would be
moved to a facility as far away as Louisiana.... I am asking your office for
help in keeping [name redacted] in a Boston area facility, and for help in
slowing down the process that would have [name redacted] deported and would
break up our family. We need time to establish the fact to the US Government
that [name redacted] is actually a US citizen, due to the US citizen status of
his biological father.[150]

In asylum cases, detainees’ family members can
sometimes provide the best evidence of the persecution their loved one might
face if deported. For example, an Indonesian detainee of ethnic Chinese
background told Human Rights Watch he was trying to claim asylum because of the
persecution he and his siblings had faced in Indonesia. He was originally
detained in Los Angeles, but was transferred to Texas where he was having a
very difficult time getting evidence from his family and other sources about
the persecution he had experienced and feared in the future:

The judge says she doesn’t know if what I am saying
is true. The only document I have is a copy of my birth certificate. The people
who can prove it are in California. I signed up as a dorm cleaner so I could ...
buy a phone card. I saved up so I could try calling my brother and sisters [in
Los Angeles], but I cannot get a hold of them.... I don’t even know if
they know where I am.... If I was in California, it would be easier. I could
get the information I need from my brother. I could find a lawyer. I’ve
been in detention now for seven months. It’s getting more stressful. I
think I’m just not going to appeal anymore. What else can I do?[151]

In still other cases, a detainee’s moral character is
relevant to whether the court will find he or she must be deported. To
establish moral character, employers, family members, community witnesses, and
even victims of the detainee’s minor criminal offense can provide
essential evidence.

For example, Esteban G. entered the United States from El
Salvador as a refugee when he was 17 years old. His mother, sister, and
stepfather are all US citizens and all reside in California. Esteban was taken
into custody in Los Angeles, but “before my Mom and sister could get
there to visit me” he was transferred to detention in Texas. He was
facing deportation because of a drug possession conviction, for which he had
been sentenced to probation. He told Human Rights Watch how difficult it has
been for him to defend against his deportation, both because his documents were
lost during the transfer and because his moral character is an issue in his
case:

First of all, they didn’t send me all my property and
papers, which I need for my case. It’s been three months since they
transferred me from LA and I still don’t have my papers. I have filed
five requests to get them. The officer said, “if you keep bothering me,
the more time it will take.” They say they are deporting me for
“trafficking,” but that is not what I was doing. My conviction is
for possession of $20 of cocaine and $5 of marijuana. I have people in Los
Angeles who can talk about my character, who know that I worked hard, went to
high school, was always there for my family. I messed up when I got involved
with the drugs. But trafficking? That’s not what I was convicted of—but
where are my papers to prove it? Plus, the judge here says that the witnesses
can’t go to court in LA and testify.[152]

As this case illustrates, there are also practical ways in
which transfers can interfere with detainees’ ability to present a
defense. In some cases, detainees lose access to law libraries after being
transferred to contract county jails.[153]
In others, detainees lose their legal documents during the transfer process.[154]
Finally, family members and friends often provide the critical link between
detainees and immigration counsel by helping detainees locate and retain
counsel, as well as by assisting in collecting supporting documents and
declarations. Transferred detainees in remote locations cannot get such help.

A legal permanent resident from the Dominican Republic detained
in Texas who was facing deportation because of a domestic violence conviction
explained that his entire family is in Pennsylvania, as are all of his
documents. He told Human Rights Watch, “I had to call to try to get the
police records myself. It took a lot of time. The judge got mad that I kept
asking for more time. But eventually they arrived. I tried to put on the case
myself. I lost.”[155]

The lack of proximity to relevant documents is an enormous
hurdle for non-citizens transferred far away from the state in which they
received their criminal conviction. This is because

the government frequently files criminal deportation
charges against aliens without providing the proper court records to prove the
conviction, and the IJ’s enter orders of deportation anyway—so the
alien often has to obtain his own certified conviction and police records to
disprove the government’s allegations.[156]

There are numerous federal court cases noting that the
government sometimes fails to submit sufficient evidence in support of its
claim that a particular non-citizen is deportable.[157]
Therefore, a transferred detainee’s inability to obtain necessary
documents from a jurisdiction far away from his or her place of post-transfer
detention, even without a strong case against him or her, can have devastating
results in his or her case.

In another example, a detainee transferred from southern
California to Texas wrote to then Attorney General Alberto Gonzales:

I have no legal representation because I cannot afford one.
Judge Rogers declined to release me on bond and remarked when I asked, that he
would not grant a request to transfer venue to Riverside, California. All
additional evidentiary documents or witnesses for my defense would be there....
California has been my home of record for most of my life. I do not pose a risk
of flight—all family and relatives are residents of California. I do not
pose a danger to anyone.[158]

Transferring detainees away from key witnesses and evidence
effectively denies them an opportunity to present a defense against removal,
which is a violation of their human rights. Article 13 of the ICCPR states:

An alien lawfully in the territory of a State Party to the
present Covenant may be expelled therefrom only in pursuance of a decision
reached in accordance with law and shall, except where compelling reasons of
national security otherwise require, be allowed to submit the reasons
against his expulsion and to have his case reviewed by, and be represented
for the purpose before, the competent authority or a person or persons
especially designated by the competent authority.[159]

The UN Human Rights Committee, which monitors state
compliance with the ICCPR, has interpreted the phrase “lawfully in the
territory” to include non-citizens who wish to challenge the validity of
the removal order against them. In addition, the committee has made this
clarifying statement: “if the legality of an alien’s entry or stay
is in dispute, any decision on this point leading to his expulsion or
deportation ought to be taken in accordance with article 13.... An alien must
be given full facilities for pursuing his remedy against expulsion so that this
right will in all the circumstances of his case be an effective one.”[160]

Despite the principle that the ability to present evidence
in one’s favor is essential to a fair hearing and despite the many ways
in which detaining non-citizens near to their families and communities of
origin facilitates access to such evidence, there is no requirement that ICE
staff weigh whether a detainee has family and community relationships nearby
when making a transfer decision. Therefore, detainees are routinely transferred
to remote locations where travel costs or immigration judges’ refusals to
allow video or telephonic appearances prevent the presentation of testimonial
evidence essential to the defense against removal.

Despite the serious problems transfer can cause for
detainees as they try to present their defenses, US courts have been decidedly
unsympathetic to these concerns. As one court states:

The INS affords detainees the right to present witnesses
and evidence at their removal proceedings, but it does not afford detainees the
means for getting those witnesses or evidence to the hearings. The fact that
Louisiana may be inconvenient for the Petitioner’s witnesses [located in
Connecticut] is insufficient to establish the prejudice required to prevent a
transfer.[161]

[157]Cheuk Fung S-Yong v. Holder, 2009 WL 2591671, *5 (9th Cir.
2009) (“There are no documents of conviction in the administrative
record-indeed, there are no documents at all in the record, other than
the government’s two-page notice to appear-and it is impossible to tell
from the hearing transcript the exact nature of the document the immigration
judge relied upon.”) (emphasis in original); Ba v. Gonzales, 228
Fed. Appx. 7, 10 (2d Cir. 2007) (“the IJ failed to offer a reasoned
explanation for deferring to an unauthenticated print-out of a RAP sheet rather
than the identity documents submitted by Ba, especially in light of the fact
that the name and birth date discrepancies were minor.”); Hernandez-Guadarrama
v. Ashcroft, 394 F.3d 674, 683 (9th Cir. 2005) ( “In this
case, the government’s proof (even if it were admissible) is not
sufficient to carry its ‘very demanding’ burden. A single affidavit
from a self-interested witness not subject to cross-examination simply does not
rise to the level of clear, unequivocal, and convincing evidence required to
prove deportability.”).